Cite as Kropelnicki v. U.S., - F.3d - (Table) (4th Cir. 1996)
STEVEN KROPELNICKI, JR., Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 95-3115
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CA-94-186-1)
Submitted: July 23, 1996
Decided: July 30, 1996
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven Kropelnicki, Jr., Appellant Pro Se.
Mark Bernard Stern, Michael Scott Raab, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this
circuit.
PER CURIAM:
Appellant appeals from the district court's order adopting the
magistrate judge's recommendation to dismiss his complaint
challenging the constitutionality of Title XI of the Violent Crime
Control and Law Enforcement Act of 1994. We have reviewed the
record and the district court's opinion accepting the
recommendation of the magistrate judge and find no reversible
error. Accordingly, we affirm on the reasoning of the district
court. Kropelnicki v. United States, No. CA-94-186-1 (W.D.N.C. Nov.
3, 1995). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
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Following is the text of the complaint in Steven Kropelnicki, Jr. v.
U.S., Case No. 1:94cv186, filed September 30, 1994 in the United States
District Court, Western District of North Carolina, Asheville Division
by attorney Steven Kropelnicki:
1. Plaintiff is a citizen and resident of the United States and of the
State of North Carolina. He is an able-bodied adult male and a citizen and
resident of the State of North Carolina.
2. This is an action over which the district court has jurisdiction
under Title 28, United States Code Sections 1331 and 1346.
THE ACT
3. Congress has enacted and the President has signed into law a bill
known as the Omnibus Crime Control Bill of 1994 which contains a subtitle,
"The Public Safety and Recreational Firearms Use Protection Act" (hereinafter
referred to as "the Act"). This Act provides, inter alia, that it is
unlawful for any person to manufacture, transfer, or possess a
"semi-automatic assault weapon", with the proviso that the aforementioned
prohibition shall not apply to the possession or transfer of any "semi-
automatic assault weapon" otherwise lawfully possessed on the date of the
enactment of the subsection.
4. The Act also prohibits transfer or possession of large capacity
ammunition feeding devices, except for those lawfully possessed on or before
the date of enactment of the subsection.
5. The Act defines the term "semi-automatic assault weapon" to include
a list of specific firearms, including the Colt AR-15, and in addition any
other semi-automatic firearms possessing certain operational and cosmetic
characteristics.
6. The Act defines large capacity ammunition feeding devices,
generally, as detachable magazines that have a capacity of or can readily be
converted to accept more than 10 rounds of ammunition.
7. The Act imposes criminal penalties for violation of the
aforementioned provisions.
8. The Act specifically excludes from its provisions certain
semi-automatic firearms, e.g., the Ruger Mini-14 rifle.
BACKGROUND
9. Plaintiff is a member of the militia of the State of North Carolina
as provided in North Carolina General Statutes Chapter 127A.
10. Neither the government of the United States nor the government of
the State of North Carolina has made any provision for arming and equipping
the militia of the State of North Carolina.
11. Plaintiff desires to acquire by lawful means certain
semi-automatic firearms which by virtue of their design, function, and
capability are suitable arms for service in the militia. Those arms included
but are not limited to a rifle known as a Colt AR-15, manufactured in the
United States, as well as magazine feeding devices and other accessories for
these firearms. Plaintiff intends to acquire these firearms for all of the
following purposes:
a. To prepare himself for service as a member of the militia, which
service is an obligation of citizenship, as evidenced by the aforementioned
North Carolina law;
b. The lawful defense of himself, his family, and his home, against
unlawful acts of criminals and, potentially, of his government;
c. For lawful sporting purposes, including participation in civilian
marksmanship programs authorized by federal law.
12. Plaintiff owns certain components lawfully acquired prior to the
effective date of the Act, from which he desires to assemble an AR-15 rifle.
13. The firearms and magazines subject to the provisions of the Act
are, with certain exceptions, semi-automatic derivatives of selective fire
weapons designed for and in common use by the military forces of the United
States and the various other nations. For example, the AR-15 is a
semi-automatic version of the M-16 firearm used by the military forces of the
United States and its NATO allies. It uses the same ammunition and
ammunition feeding devices as the M-16, parts and components are
interchangeable between the two firearms, it operates on principles identical
to those of the M-16, and has identical performance characteristics, except
for the selective fire feature. The AR-15, and all other semi-automatic
weapons, fire one round and automatically reload with each operation of the
trigger, whereas selective fire weapons are capable of firing more that one
round with each operation of the trigger.
14. Possession of selective fire weapons by citizens of the United
States is, for all practical purposes, unlawful by virtue of other provisions
of federal law.
15. By virtue of the fact that the Colt AR-15 and the weapons
encompassed by the Act have been designed and manufactured to meet military
specifications, except for the selective fire feature, these firearms have
all of the following characteristics:
a. They use ammunition which has been manufactured in large quantities
for various military forces, and is readily available and relatively
inexpensive;
b. These firearms tend to be extremely reliable, design defects and
weaknesses having been identified and corrected in the course of their
military service;
c. Replacement parts are readily available and relatively inexpensive,
often as military surplus;
d. These weapons are designed so that maintenance and replacement of
parts subject to wear in normal use [is] simple, requiring tools which are
readily available and inexpensive, and procedures involving no high degree of
technical skill, all the results of their design for use by military forces
under adverse conditions.
16. By reason of all of the foregoing, a number of the firearms
covered by the Act are those having a direct relationship to the preservation
of an armed citizenry, capable of being called into service in a militia, and
able to protect themselves, their families, and their property against the
unlawful usurpation of power by government and against the unlawful acts of
criminals.
THE RIGHT TO KEEP AND BEAR ARMS
17. The authority of the government of the United States is limited to
those powers expressly delegated to that government by the citizens of the
United States, as set out in the Constitution of the United States.
18. The right of this plaintiff, and any other citizen of a free state
to keep and bear arms for lawful purposes, specifically for the purpose of
maintaining effective means to resist unlawful usurpation of power by his own
government, is God-given, inalienable, and is an indispensable element of the
sovereignty vested in the people of these United States prior to the
enactment of any constitution or the establishment of any national
government.
19. No provision of the Constitution of the United States and no act
of the people of these United States confers upon the government of the
United States any authority to infringe upon the inalienable rights of this
plaintiff and other American citizens to keep and bear arms for lawful
purposes.
20. This plaintiff, and other American citizens similarly situated
have, then, a right to keep and bear arms, which right does not derive from
any government, but which, on the contrary, is an element of the sovereignty
of the people of these United States.
21. The right of the people to keep and bear arms is expressly
acknowledged by the provisions of the Second Amendment to the Constitution of
the United States, but the right does not derive from that Amendment nor is
it limited by any limitations which might be read into that Amendment.
22. To the extent that the language of the Second Amendment may be
read so as not to encompass the rights of this plaintiff, as set forth above,
then those rights are among the rights retained by the people, as
acknowledged by the Ninth and Tenth Amendments to that Constitution.
UNCONSTITUTIONALITY OF THE ACT
23. To the extent that the Act prohibits plaintiff and other citizens
of the United States from possessing, manufacturing, or transferring certain
semi-automatic firearms and ammunition feeding devices, it is patently
unconstitutional, in that the government of the United States has no
jurisdiction nor authority to enact such provisions and those provisions
infringe upon inalienable and inherent rights of plaintiff and of other
citizens of the United States, which rights are expressly reserved to the
people by virtue of the provisions of the Second, Ninth and Tenth Amendment
to the Constitution of the United States.
24. Assuming, arguendo, that the powers delegated to government of the
United States include the power to enact reasonable regulations governing the
time, place, and manner of the exercise of the rights in question, the
provisions of the Act exceed in any legitimate exercise of that police power
authority, in that they are overly broad and constitute a prior restraint
upon the exercise of constitutionally protected rights.
25. The Act infringes upon fundamental and constitutionally protected
rights of plaintiff and other citizens of the United States arbitrarily and
capriciously, in as much as it specifically excludes from its provisions
certain semi-automatic firearms without a rational basis which bears any
relationship to any legitimate exercise of the police power.
REQUESTED RELIEF
26. There exists an actual controversy concerning the
constitutionality of the Act, which controversy is within the jurisdiction
conferred on this court by the provisions of 28 U.S. Code Section 2201, the
Declaratory Judgment Act.
27. Plaintiff is entitled to a declaration that the Act is
unconstitutional and void, and to a permanent injunction against attempts by
the defendant or any of its agents to enforce the Act.
28. Plaintiff will suffer grave and irreparable harm, for which he has
no adequate remedy at law, if the defendant be permitted to attempt to
enforce the provisions of the Act during the pendency of this proceeding, and
plaintiff is entitled to preliminary injunctive relief prohibiting the
defendant and its agents from enforcing or attempting to enforce the
provisions of this Act, pendente lite.
WHEREFORE PLAINTIFF RESPECTFULLY PRAYS THE COURT FOR RELIEF AS
FOLLOWS:
1. That it enter a declaratory judgment that the Act is
unconstitutional, in that it is beyond any powers delegated to the government
of the United States, it violates fundamental and inalienable rights of the
plaintiff and of other citizens of the United States in violation of the
Second, Ninth and Tenth Amendments to that Constitution, in that it is over
broad, arbitrary, and irrational.
2. For preliminary and permanent injunctions against enforcement of
the Act against plaintiff or any other citizen of the United States.
3. That he be awarded costs, including reasonable attorney's fees.
4. For such other and further relief as may appear to the court to be
just proper.
This 30th day of September, 1994
_______________________
Steven Kropelnicki, Jr.
Plaintiff
CARTER & KROPELNICKI, P.A.
14 South Pack Square, Suite 340
Asheville, North Carolina 28801
(704) 252-9804